Hegwood v. J. J. Newman Lumber Co.

96 So. 695 | Miss. | 1923

Ethridge, J.,

delivered the opinion of the court.

Appellant filed suit for personal injuries against the appellee. There was a judgment fop the defendant, from which this appeal is prosecuted.

The appellant was employed by the appellee to operate an upright steam engine for the purpose of supplying water in a tank used for operation of its logging trains; that is to say, the upright engine pumped the water into the tank, and from the tank the boilers of the engines used in the logging operations were supplied. The tank and the upright engine was operated in a rural section near a stream, and plaintiff’s work required his services from twelve o’clock noon until in the night, varying from ten to twelve o’clock. Plaintiff’s injury was occasioned by a splinter flying back from a stick of wood which plaintiff was putting in the upright engine for the purpose of firing it; said splinter striking his right eye and destroying the sight thereof. The plaintiff proceeds upon the theory that it was the duty of the company to furnish him with a light by which to work, and that by reason of not having the light he could not see the splinter, and he was thus injured. It is also contended that the upright engine was so located that the fire- box was unduly low, requiring him to work in a stooped position, and that the door of the fire box was small and rendered the work dangerous.

The plaintiff showed in his testimony that he was furnished fuel consisting of pine limbs, pine knots, and refuse pine timber, and that he furnished a lantern himself which he kept near the glass valve so he could see the condition of the water in the engine. He was furnished a club axe for the purpose of cutting or splitting the wood. He fails to show in his proof that there was any contract on the part of the defendant to 'furnish a light, but proceeds upon the idea that it was the defendant’s duty to furnish a safe place in which to work, and that to make the place safe required a better light than he had.

There was a peremptory instruction for the defendant at the close of the plaintiff’s testimony.

The proof fails to show that the situation called for an extra person to furnish light. The situation discloses that the plaintiff furnished his own light, and we think a fair construction of the evidence shows that it was understood and contemplated that the person who operated the upright engine would make such light as the situation called for for himself. In other words, the situation does not show a case where it was necessary to have another employee to furnish the light, but the several witnesses who testified, who each had operated an engine, each furnished his own light. They Avere furnished material from which the light could be maintained, and the person operating the engine Avas expected and did undertake to light the premises himself, discharging for the master in reference thereto the function of furnishing the necessary light for the work after dark. The failure to have a light was attributable to the failure of this servant, and to make the master negligent he must show his own fault was the cause of the said neglect, and he cannot profit by his own fault; being under the duty to make such light as was necessary for the operation which he undertook, and failing to maintain such light, he cannot recover for his own default.

The judgment will therefore be affirmed.

Affirmed.